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Every Dog Has Its Day ... At the Office

The state and federal legal issues associated with permitting service animals in the workplace revolve around the Americans with Disabilities Act, reasonable accommodations and what constitutes undue hardship.

Monday, April 23, 2012
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Question: Must employers allow service animals in the workplace? We have an employee who is legally blind and has a guide dog at work with him. Some employees have expressed a dislike about having to work with the animal in the workplace. What should we do in this situation? Must we allow the dog to stay?

Answer: Yes. Unless you can prove that the presence of the guide dog in the workplace creates a safety hazard and/or an undue hardship for the company, you must allow the dog to stay.

There is no hard-and-fast rule under the Americans with Disabilities Act requiring employers to allow guide dogs to accompany disabled employees in the workplace. However, employers with 15 or more employees must make reasonable accommodations for employees with disabilities unless the accommodation would cause an undue hardship to the operation to the business or present a direct threat to health and safety.

What is considered a "reasonable accommodation" and what constitutes an "undue hardship" varies by employee, employer, position and condition. Yet federal statutes, regulations, guidance and case law all suggest that prohibiting a legally blind employee from being accompanied to work by his guide dog is an unlawful denial of a reasonable accommodation.

Even if federal law did not apply in this case, many states impose similar obligations on employers as the ADA does.

Employee complaints alone will not likely constitute an undue hardship, and assuming that there is no evidence to indicate that the legally blind employee's guide dog presents a direct threat to health and safety, the company will likely have to permit the dog to accompany the disabled employee in the workplace.

Federal Law

Title I of the ADA prohibits with employers with 15 or more employees from discriminating against any employee on the basis of a disability. Americans with Disabilities Act of 1990, 42 U.S.C.A. §§ 12111(5)(A), 12112(a) (2008).

However, an employee is only covered under the ADA if he or she can perform the "essential functions" of the job with or without a reasonable accommodation. Id. at § 12111(8).

The term "disability" is defined as "a physical or mental impairment that substantially limits one or more major life activities." Id. at § 12102(1)(A). An individual's ability to see is one of the enumerated "major life activities" under the ADA, and therefore, legal blindness is likely considered a disability under the ADA. See id. at § 12102(2)(A); see, e.g., Canny v. Dr. Pepper/Seven-Up Bottling Grp, Inc., 439 F.3d 894, 900 (8th Cir. 2006) (finding legally blind employee to be "disabled" under the ADA on the grounds that his "visual impairment ... substantially limits [his] major life activity of seeing").

Unlawful discrimination in the ADA context includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business." 42 U.S.C.A. § 12112(b)(5)(A).

State Laws

Many states also have laws either requiring employers to make reasonable accommodations or prohibiting employers from discriminating against employees with disabilities.

For example, New Jersey law provides that "[u]nless it can be clearly shown that a person's disability would prevent [a] person from performing a particular job, it is an unlawful employment practice to deny an otherwise qualified person with a disability the opportunity to obtain or maintain employment, or to advance in position in his job, solely because such person is a person with a disability or because such person is accompanied by a service or guide dog." N.J. Stat. Ann. § 10:5-29.1 (West 2012) (emphasis added).

Similarly, New York law provides almost identical protections for employees. See N.Y. Civil Rights Law § 47-a (McKinney 2009).

The Reasonable-Accommodation Requirement

Generally speaking, an accommodation is "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, n.3 (last updated October 22, 2002) (quoting 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997).

"Reasonable accommodations" are defined as "[m]odifications or adjustments to the work environment," that either "enable an individual with a disability who is qualified to perform the essential functions of th[e] position; or ... to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities." 29 CFR §§ 1630.2(o)(1)(ii)-(iii).

While Title I of the ADA does not specifically mention service animals as a reasonable accommodation, federal guidance suggests that "it would be a reasonable accommodation for an employer to permit an individual who is blind to use a guide dog at work even though the employer would not be required to provide a guide dog for the employee." 29 C.F.R. Appendix to Part 1630 -- Interpretive Guidance on Title I of the Americans With Disabilities Act Introduction, § 1630.2(o) [hereinafter Title I Guidance].

Courts considering an employer's obligations under the ADA have found that prohibiting a disabled employee from bringing a service dog to the workplace may be considered an unlawful denial of a reasonable accommodation.

In one instance, a court granted a wheelchair-bound employee an injunction requiring her employer to allow her service dog to accompany her to work after a jury found the employer failed to "identify and make a reasonable accommodation [for] her[,] ... [and] provide her with an equally effective opportunity in the workplace." See Branson v. West, No. 97 C 3538, 1999 WL 1186420, at *13 (N.D. Ill. Dec. 10, 1999) (finding the defendant hospital violated federal law by denying the plaintiff "the reasonable accommodation of being accompanied by her service dog while at work").

The employer contended that allowing the service dog to accompany the plaintiff to work would create a "logistical nightmare," and present difficulties in preventing the dog's contact with allergic or fearful patients. Id. at *8-9.

The court dismissed the employer's arguments as unbelievable, unsupported and speculative primarily because the hospital already allowed Seeing Eye dogs, the presence of which was indistinguishable from the plaintiff's service dog. Id.

At least one court has even found that an employer may be required to install mats in the hallways of a workplace in order to prevent a guide dog from slipping and falling while assisting a disabled employee. See McDonald v. Dep't of Envtl. Quality, 351 Mont. 243, 255, 265 (2009) (reversing and remanding a lower court's finding that no precedent existed under either Montana law or the ADA requiring an employer to accommodate "the special needs of a service animal" by physically altering the workplace).

While the plaintiff's claim in McDonald was based on Montana law, the court recognized that it was "useful and appropriate to consider federal statutes, regulations, and case law as persuasive authority," because the Montana law in question was modeled after the ADA. Id. at 256.

The court noted that an employer's obligations with respect to service animals are no different than those with respect to wheelchairs. Just as an employer may be required to install ramps ensuring employees using wheelchairs may move throughout the workplace effectively, they may also be required to install mats to ensure a service animal can move around without slipping and falling. Id. 262-63.

So, not only may employers be required to allow service dogs to accompany disabled employees in the workplace, they also may be required in some states to make additional accommodations to ensure the employee's assistive device -- in this case, a service animal rather than a wheelchair -- may effectively assist the employee in performing the essential functions of the job.

In some cases, however, the use of a service animal will not be considered a reasonable accommodation, and an employer will not be required to permit an employee to bring one into the workplace.

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In Schultz v. Alticor/Amway Corp., the court held that the employee was not denied a reasonable accommodation when his employer prohibited his service dog to accompany him to work on the grounds that the dog was not "necessary in carrying out the essential functions of his job." Schultz v. Alticor/Amway Corp., 177 F. Supp. 2d 674, 678 (W.D. Mich. 2001).

Originally, the employer in Schultz permitted the plaintiff, a facilities designer with a hearing impairment, permission to bring his service dog to work, but after several employees complained, the employer refused to allow the service animal in the workplace. Id. at 675-76.

Because the plaintiff's job mainly involved his sitting at a desk and producing drawings, the court could not imagine how the dog would assist him in performing the essential functions of his job. Id. at 678. Thus, the employer did not unlawfully deny the plaintiff a reasonable accommodation by prohibiting his service dog from accompanying him to work. Id. at 678-679.

Given that the focus of your question is on an employee who is legally blind (rather than hearing impaired), and assuming that the guide dog assists the employee in performing the essential functions of his job, prohibiting him from being accompanied by a guide dog in the workplace is almost certainly an unlawful denial of a reasonable accommodation unless you can prove that the service dog poses an undue hardship and/or safety threat to the company.

The Undue-Hardship Argument

Undue hardship is defined as "an action requiring significant difficulty or expense," when considering the "nature and cost of the accommodation" in light of the overall circumstances and condition of the employer. See 42 U.S.C.A. §§ 12111(10)(A)-(B); 29 CFR § 1630.2(p) (setting forth the factors to be considered in determining whether accommodation will result in undue hardship).

The undue-hardship analysis is a fact-intensive inquiry that will vary from employer to employer, situation to situation. However, employee complaints will likely be insufficient to show "significant difficulty or expense," primarily because allowing a guide dog to accompany to a legally blind employee results in little if any financial expense at all, as employers are not required to care for or provide an employee's service animal. Title I Guidance, § 1630.2(n); see, e.g., U.S. Department of Justice, Civil Rights Division, Disability Rights Section, Commonly Asked Questions About Service Animals in Places of Business, ADA.gov (last updated Jan. 14, 1998) ("The care or supervision of a service animal is solely the responsibility of his or her owner. [The employer is] not required to provide care or food or a special location for the animal.").

Undue hardship may be a viable defense when, for instance, an accommodation permits a disabled employee to switch from full-time to part-time, resulting in significantly increased workloads for other employees to such an extent where the business' operations are significantly disrupted. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, EEOC.gov (last updated Oct. 22, 2002).

It is also a viable defense when the company would have to incur unreasonable high expenditures to permit the presence of the animal.

Your question does not suggest that the employee's service dog is a safety threat to the company. It also does not suggest that the presence of the service dog requires any additional expenditure on behalf of the company, would result in increased workloads for others or disrupt the business in any significant way.

The only concern raised by your question is that other employees do not want to work with the animal at the workplace. However, employee complaints about working with a service animal that assists a disabled employee in performing the essential function of his or her job, will likely not be deemed, in and of themselves, as creating an undue hardship for the company. As a result, the service dog must be allowed to stay.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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